Human Rights
Can an employer lay off an employee before, during or after their pregnancy or parental leave?
Yes, but only under certain conditions. First, the termination of employment cannot in any way be the result of the employee’s pregnancy or parental leave. In other words, an employer is only allowed to lay off an employee if the termination would have happened in any event (i.e. they would have been terminated even if they weren’t pregnant or taking parental leave). Second, any actual termination or notice of termination cannot take effect if the employee is actually on pregnancy or parental leave. (In other words, while a notice of termination can be given to the employee on leave, it cannot take effect until the date the employee is scheduled to return from her leave. At that time, the employee would then be entitled to the notice of termination (or pay in lieu of notice) based on their total service (including her leave). Employers should carefully consider any decision to lay off an employee immediately before a pregnancy or parental leave is to start, as the employee may have great difficulty finding alternate work and potentially not qualify for pregnancy/parental leave (EI) benefits thereby increasing the compensation owed by the employer to the employee.
A job applicant who did not get a job with our company suspects that they have been discriminated against. Can they make a Human Rights Complaint?
Yes, provided that the discrimination was based on one of the protected grounds set out in the Human Rights Code.
On what grounds can someone make a Human Rights complaint against an employer or a prospective employer?
Discrimination by an employer or potential employer on the basis of: race; ancestry; place of origin; political belief; religion; marital status; family status; physical or mental disability; sex (including pregnancy and transgender discrimination); sexual orientation; age; or criminal conviction or summary conviction for behaviour which is unrelated to the job or potential job, are grounds for making a Human Rights complaint.
Is there a minimum amount of time an employee must have worked for an employer before they are entitled to maternity leave?
No, if you are an employer in British Columbia there is no minimum amount of time that an employee must work for you before they are entitled to take maternity leave. However, an employee wishing to take maternity leave must submit a request for maternity leave to you in writing and at least 4 weeks before they propose to begin their leave.
How long does an employee or prospective employee have to bring a human rights complaint?
Under the Human Rights Code an employee or prospective employee has 6 months from the date on which the discrimination occurred to make a complaint. If the discrimination is of an ongoing or continuous nature, the complaint must be filed within 6 months of the last instance of discrimination. If the employee or prospective employee has missed the 6 month limitation period, they may still apply to the Human Rights Tribunal to accept all or part of their claim. The Tribunal may agree to overlook the expiry of the limitation period where it is in the public interest to accept the complaint and there will be no substantial prejudice (i.e. the other party will not be at a significant disadvantage) because of the delay.
An employee has developed a medical condition and, on their doctor's advice, has asked their attendance at work be excused for a period of time. What medical information is an employer entitled to ask for un order to verify this employee's request?
Employers are entitled to a letter from their employee’s doctor verifying that they have a medical condition which requires an absence from work, and the length of time that the doctor believes the employee will be absent. Employers are not entitled to any specific information regarding an employee’s medical condition unless the employee is claiming that their condition was caused by their employment.
Is an employer required to give an employee time off work as recommended by their doctor if they have developed a medical condition or injury?
An employer is required to accommodate an employee’s request to the point of undue hardship, even if their request falls outside their employment sick leave policy or collective agreement. This is because the Human Rights Code protects an employee from discrimination due to disability. Determining what constitutes ‘undue hardship’ is dependent on the facts of each situation.
An employee has developed a medical condition which requires change to some of their work conditions. Does an employer have to make these changes for their employee even if they don't want to?
That depends. An employer is entitled to verification from their employee’s doctor that they have a medical condition which requires changes to their job. An employer is also entitled to a medical opinion of the restrictions that the medical condition places on their employee’s health and the employee’s ability to do their job. An employer must then consider whether or not it can modify the employee’s job requirements to accommodate those restrictions, whether the modifications create safety concerns for the employee or their co-workers, and whether or not the accommodations made on their behalf can be made without undue hardship.
Can an employer refuse an employee's request to accommodate their medical disability (temporarily or permanently)? What are the consequences for refusal to accommodate?
If an employee has asked you to accommodate their medical disability and you and your employee cannot agree on what if any accommodation should be made, then the employee may have grounds to file a complaint against the employer with the B.C. Human Rights Tribunal.
